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Wednesday, July 25, 2007

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Listed below are links to weblogs that reference Ninth Circuit Says Company Can't Change Contract Terms Without Notice:

» 9th Circuit Court Says Companies Can't Change Contract Terms Simply By Posting Changes On A Website from Consumerist
Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. Indeed, a party can't unilaterally change the terms of a contract; it must... [Read More]

Comments

Jack Payne

If something goes without saying, don't say it. This is a fundamental truism I've always believed in. It's nice to see that the 9th Circus was right on this one.

--Jack Payne
www.sixhrs.com

Nathan

This also had me thinking about someone who decided to create their own T&C for contacting them. Seems like an interesting idea but would it even hold up in court? you can see it at http://www.emerald-dragon.com/termspolicy. I'm wondering if I could use something like that to protect me. Is it even possible?

Greg

Nathan, what you suggest doesn't make any sense. Contract terms aren't binding on someone who has not assented to those terms. You can't make someone automatically agree to something just by sending you an email on an unrelated subject.

Nathan

Meh, I don't know anything about contract law so I wasn't sure if something like that would hold up or not. I just came across it on stumble upon and thought it looked interesting. You make a valid point though, but wouldn't this be similar to the terms that some companies post for viewing their website or would you need to have approved the terms? do website terms hold up in court?

Greg

Some courts have upheld agreements where the user has to click "I Agree." Whether particular terms would be upheld in that situation would depend on the terms and the circumstances of the case (i.e. was the user aware of the terms while using the website, how prominently were the terms displayed, etc.). If the user doesn't have to affirmatively assent, a court would be a lot less likely to hold the terms to be binding, especially if they are unfair or one-sided.

Brian

This reminds me of the case I read in first-year contracts in which, if I recall it correctly, a company sends a periodical of some sort to the "customer" and then sues to collect for what it claims it is "owed" for the periodical. I believe the court enforced the "contract," which is crazy.

Maura

Because of the FAA's provision forbidding interlocutory appeal of orders to arbitrate, there was no other way to get this question before the 9th Cir except via mandamus now, right? Or could the underlying contract have been challenged when seeking judical review of the eventual arbitration award?

Greg

Maura, yes that's the reason it was on mandamus. I would think you could challenge the order to arbitrate after the arbitration was complete, but maybe someone else can give a definitive answer.

dental care

That's a real fact, obviously, a company can't change ANYTHING about the contract terms without telling the whole ''employees''!!!

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